Sunbehm Gas, Inc. v. Lesmeister, 10047

Decision Date20 July 1981
Docket NumberNo. 10047,10047
Citation308 N.W.2d 555
PartiesSUNBEHM GAS, INC.; A. G. Golden; and Deka Minerals, a partnership, Petitioners, v. John Steven LESMEISTER, State Treasurer, Respondent. Civ.
CourtNorth Dakota Supreme Court

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for petitioners; argued by Frank J. Magill, Fargo.

Kenneth M. Jakes, Asst. Atty. Gen., State Tax Dept., Bismarck, argued, for respondent by Robert W. Wirtz, State Tax Dept., Bismarck.

ERICKSTAD, Chief Justice.

On July 10, 1981, the plaintiffs, SunBehm Gas, Inc., A. G. Golden, and Deka Minerals, a partnership, (hereinafter the Taxpayers 1) filed an application requesting this Court to exercise its original jurisdiction, under Article VI, Section 2 of the North Dakota Constitution, and to issue a writ of prohibition, under Chapter 32-35, N.D.C.C., against the defendant, John Steven Lesmeister, State Treasurer, restraining him from allocating or apportioning funds received under Initiated Measure No. 6 (approved by the voters on November 4, 1980 (S.L.1981, Ch. 649), and amended by the Forty-seventh session of the North Dakota Legislature). Throughout this opinion whenever reference is made to Initiated Measure No. 6 it means as amended. On that same date, July 10, 1981, this Court entered a temporary restraining order directing the State Treasurer to refrain from making allocations or distributions of funds received under Initiated Measure No. 6 until further order of this Court; and entered a further order requesting that the parties appear on July 15, 1981, to show cause and present argument and reasons whether or not the restraining order should be continued.

During April, 1981, the Taxpayers filed an action 2 in the District Court of Stark County challenging the constitutionality of the oil extraction tax imposed by Initiated Measure No. 6. The action was dismissed by order of the district court, dated May 12, 1981, from which the Taxpayers filed an appeal with this Court which is currently pending as Civil No. 10013.

The Taxpayers allege that, subsequent to filing their action in district court, they paid oil extraction taxes under Initiated Measure No. 6 pursuant to an understanding with the State Treasurer that he would neither allocate nor apportion such monies until a reasonable time had elapsed for an appeal to and decision by this Court from the district court order dismissing the constitutional challenge of Initiated Measure No. 6. The Taxpayers assert that the State Treasurer, in violation of his agreement with them, has decided to immediately allocate and apportion oil extraction tax monies received under Initiated Measure No. 6. The Taxpayers assert that these monies, if the State Treasurer is allowed to allocate and apportion them, may be unavailable for refund if the tax imposed by Initiated Measure No. 6 is declared to be unconstitutional. To secure the availability for refund of the oil extraction tax monies paid by them the Taxpayers request this Court, by exercising its original jurisdiction, to issue a writ of prohibition restraining the State Treasurer from allocating or apportioning oil extraction tax monies received pending a final determination of the appeal in the constitutional challenge action. We deny the Taxpayers' request to exercise original jurisdiction over this matter, we deny the request for a writ of prohibition, and we dissolve the temporary restraining order.

The power vested in this Court to issue original and remedial writs is a discretionary power which may not be invoked as a matter of right, and this Court will determine for itself in each case whether or not the matter is within the Court's original jurisdiction. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978). Generally, the exercise of this Court's original jurisdiction is limited to those cases in which the question presented is publici juris, wherein the sovereignty of the state, its franchises or prerogatives, or the liberties of its people are affected. State ex rel. DeKrey v. Peterson, 174 N.W.2d 95 (N.D.1970). Furthermore, this Court will generally not exercise its original jurisdiction to issue a writ on the application of a private relator unless the Attorney General has been requested to institute the proceedings and has refused to grant the request or has unreasonably delayed action thereon. DeKrey, supra; State v. Omdahl, 138 N.W.2d 439 (N.D.1965).

We conclude that this matter does not warrant the exercise of this Court's original jurisdiction because it is not publici juris. This matter does not involve interests of the state which are primary, 3 rather than incidental; nor does it involve a question in which the public, the community at large, has an interest or right which may be affected. State v. Omdahl, 138 N.W.2d 439 (N.D.1965). We believe the precedent of Omdahl, supra, directly supports our conclusion.

In Omdahl, supra, the petitioner, acting on his own behalf as a taxpayer of this state and on behalf of all taxpayers similarly situated, requested this Court to issue a writ of prohibition against the State Tax Commissioner restraining him from collecting use taxes which he was allegedly without authority to collect. The petitioner, requesting additional relief, further alleged:

"... that, unless this court takes original jurisdiction and issues its prerogative writ restraining the respondent Walter Christensen, as State Treasurer, that officer will transfer monies collected as use taxes to the General Fund and that the relator thereby will be denied its rights." 138 N.W.2d at 441.

In refusing to exercise original jurisdiction this Court stated:

"It is well settled that the Supreme Court will not, however, exercise its original jurisdiction to vindicate mere private rights, regardless of how important those rights may be....

"Here, the relator brings this proceeding for itself and for others similarly situated. At best, all such parties are taxpayers who contend that the taxes complained of are invalid and are being collected illegally. Thus the relator-taxpayer, or the group of taxpayers similarly situated, are the parties to the litigation and they represent in this proceeding, not the public, nor the State, nor the people of the State; they represent themselves as taxpayers and they bring...

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3 cases
  • Schlenk v. Northwestern Bell Telephone Co., Inc., 10259
    • United States
    • North Dakota Supreme Court
    • January 27, 1983
  • Daley by Daley v. American Family Mut. Ins. Co.
    • United States
    • North Dakota Supreme Court
    • October 23, 1984
    ...Court determines for itself in each case whether or not exercise of its original jurisdiction is appropriate. Sunbehm Gas, Inc. v. Lesmeister, 308 N.W.2d 555, 557 (N.D.1981); Malony v. Cass County Court of Increased Jurisdiction, 301 N.W.2d 112, 113 (N.D.1980); Crawford v. Snortland, 300 N.......
  • Schneider v. Ewing, 10075
    • United States
    • North Dakota Supreme Court
    • October 6, 1981
    ...available only when an inferior court, body, or tribunal is about to act without or in excess of jurisdiction. Sunbehm Gas, Inc. v. Lesmeister, 308 N.W.2d 555, 558 (N.D.1981). In Davis v. O'Keefe, 283 N.W.2d 73, 76 (N.D.1979), in denying a writ of prohibition, this court "The authority vest......

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